R (on the application of the Attorney-General) v Herald & Weekly Times Limited [1999] VSC 432

(b) the article had a tendency or was calculated (in the sense of objectively likely) to influence the Honourable Mr Justice Eames in his decision-making process.

Those are the particulars of the charge which define the issues before me. See Attorney-General v Leveller Magazine [1979] AC 440 at 461; Australian Building Construction Employees' and Builders Labourers' Federation & Ors v Minister of State for Industrial Relations & Ors (1982) 43 ALR 189 at 208 and 211.

22. The proceeding before Mr Justice Eames to which the articles related was, as set out above, a major review under the Act in respect of one Derek Ernest Percy. His Honour found that on 20 July 1969 at Warneet in Victoria Mr Percy killed a 12 year old girl, whom he had abducted. The relevant circumstances of the killing appear from paragraphs 6 and 7 of the decision of His Honour dated 2 October 1998:

When he was arrested a search of Mr Percy's motor vehicle disclosed notes in which he had detailed rape and homicidal fantasies involving children. The notes contained drawings of naked children. At the time when the little girl was abducted she was in the company of a young boy of similar age, and Mr Percy made an effort to capture that boy, too, but he ran away and later gave the alarm and was a key witness against Mr Percy. I have received a victim report from that witness, which attests to the considerable trauma in his life since these events, and in consequence of them.

Prior to her death the little girl was subjected to appalling indignities and torture, and was killed and mutilated in circumstances which need not be described here.

27. After a six day trial Mr Percy was found not guilty on the ground of insanity. On 9 April 1970 the trial judge, Mr Justice Pape, ordered, pursuant to section 420 of the Crimes Act 1958 as it then stood, that Mr Percy be kept in safe custody until the Governor's pleasure was known. The Governor made known his pleasure on 10 May 1970, that Mr Percy be confined in safe custody. At the time of the major review he had been in custody, in prison, as a Governor's Pleasure detainee for more than 29 years.

30. The Act, the relevant provisions of which came into operation on 18 April 1998, repealed section 420 and other legislative provisions relating to fitness to stand trial for criminal offences and to the defence of insanity. The effect of clauses 1 and 2 of Schedule 3 and section 35 of the Act was that any person who, immediately before the commencement day, was subject to an order under section 420, was to be the subject of a major review at a date related specifically to the "nominal term" of the order. Such a person is deemed to be the subject of a "custodial supervision order" under the Act.

33. Section 35 of the Act provides, so far as relevant:

35.(1) At least 3 months before the end of the nominal term of a supervision order, the court that made the order must undertake a major review.

(2) The purpose of a major review is to determine whether the person subject to the order is able to be released from it.

(a) if the supervision order is a custodial supervision order -

(i) must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order; or

(ii) if so satisfied, must confirm the order or vary the place of custody;

42. Section 36 provides that the person subject to the order is entitled to appear before the Court in person at the major review and to be legally represented. Section 37 provides that the State or the Director of Public Prosecutions, or both, and any other person having a substantial interest in the matter may also appear. Section 38 relevantly provides:

In a major review . . . the court is not bound by rules or practice as to evidence but may inform itself in relation to any matter in such manner as it thinks fit.

Section 39 requires the court to "apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community", and section 40 prescribes matters to which the court is to have regard. The procedure is thus not adversarial, and the initiation of the proceeding does not depend on the making of an application by the person who is the subject of the major review, or by any other person.

47. The major review relating to Mr Percy was conducted over 17 and 18 August and 18 September 1998. Those represented were Mr Percy, the Attorney-General, the Director of Public Prosecutions and the Department of Human Services. This and two other similar proceedings, all of which came before Mr Justice Eames, were the first major reviews conducted under the Act. In a ruling on 18 September 1998 as to the standard of proof to be applied in a major review, which related to all three proceedings, His Honour ruled that:

Parliament has used words which enable the judge to approach the task [of conducting a major review under the Act] by applying the standard of balance of probabilities, with the gloss of [what was said by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362], which must necessarily have application.

51. In the course of that ruling His Honour said at paragraphs 15 and following:

. . . if the court reaches a degree of satisfaction which causes the status of a detainee to remain that of custodial supervision, then the person remains detained for an indefinite term: section 27. That result may well suggest to the detainee or his or her family that the situation of the detainee is the same as that of a person sentenced to indefinite detention, but there are, in fact, very significant differences in the two situations.

In the first place, section 35 is not concerned with punishment, at all, however much the adverse outcome of a section 35 review may convey that impression to the reviewee. The section, itself, makes it clear that the reviewee must be released to a non-custodial supervision order unless to do so would constitute serious endangerment. The section is concerned about public safety, not punishment, just as the original detention was not concerned about punishment - and could not have been, because the person had been found not guilty.

Furthermore, it is the safety of the reviewee which is as much a relevant concern as is the safety of members of the general public.

What section 35 is concerned about is the relationship of the condition of the reviewee to the issue of safety, as it may be affected by any continuing mental state or condition.

58. Thus, while the proceeding before Mr Justice Eames on the major review was neither a trial for a criminal offence nor a sentencing hearing, it was a proceeding the outcome of which would directly affect the liberty of Mr Percy. And the determination of the proceeding turned on the issues of the safety of Mr Percy and the safety of the public.

61. At a preliminary directions hearing on 21 July 1998, counsel for Mr Percy applied to His Honour pursuant to section 75 of the Act for a suppression order in relation to the proceeding. He referred to two articles which had already appeared in The Age newspaper, on 10 June and 14 June 1998, and submitted that they "refer to material that was highly inflammatory". Asked by His Honour whether his concern was that the reporting might be seen as an attempt to influence the outcome of the case counsel for Mr Percy replied, "If there is inflammatory and inaccurate reporting, we have no doubt that your Honour would not be influenced one iota by it." His expressed concern was as to the effect of publicity on his client's position should he be released from custody. He said a little later, "The reason that I'm referring to these articles, your Honour, is not to put it that your Honour would be influenced by them, because we are confident, of course, that that would not happen." In his submissions opposing the application for a suppression order, counsel for the Attorney-General said, "it might be said that publicity and frenzied publicity, if that were the case, would be put to the court, but this is a case where obviously there is not a jury and your Honour is not going to be influenced." The application for a suppression order was rejected.

64. On 26 August 1998, counsel for Mr Percy drew His Honour's attention to the Sunday article, which had been published in the Sunday Herald-Sun on 23 August, again saying, "We don't contend for one moment that your Honour would be influenced by the article" but expressing his concern about the effect of the article on members of the community into which Mr Percy desired to go. He submitted that the writer and publisher of the article should be dealt with for contempt of court. On 28 August 1998, His Honour indicated that he had determined to refer the article to the Attorney-General for her to consider whether to apply to the Court under section 46(1) of the Public Prosecutions Act 1994 ("the Prosecutions Act") for punishment of any person for contempt. He said:

It seems to me that the headline "Don't let him out" is addressed to me. I cannot imagine who else it is addressed to . . . the fact of the matter is, if nothing else, it might give the public an impression that it is an appropriate exercise to be seen to attempt to influence the court in the outcome of a case.

68. Nevertheless, the Wednesday article was published in the Herald-Sun News-Pictorial on 2 September 1998, five days after His Honour had indicated in open court that he intended to refer the Sunday article to the Attorney-General. It is not in issue that the Sunday Herald-Sun and the Herald-Sun News-Pictorial are closely associated; the first and second respondents are common to both proceedings. However, there is no evidence before me as to whether those associated with the publication of the Wednesday article were aware of His Honour's intention at the time, and I make no further reference to that matter.

71. In the event, His Honour, in his decision of 2 October 1998, confirmed the custodial supervision order under which Mr Percy was confined in a prison, being satisfied on the evidence available that the safety of members of the public would be seriously endangered if he were released on a non-custodial supervision order.

74. At paragraph 49 of his decision Mr Justice Eames referred, in the context of Mr Percy's failure to give evidence, to "the intense media speculation which surrounded Mr Percy's major review". At paragraph 77 he said:

Prior to, and during the course of, my hearings several articles appeared in the newspapers which speculated that Mr Percy may have committed more killings than that of Elizabeth Tuohy. There is no evidence before me to support that assertion. Amongst the materials placed before me was a statement by Detective Senior Constable K.S. Robertson of the Victoria Police, dated 5 May 1970. In that report Robertson referred to an interview conducted with Mr Percy about the deaths and disappearances of other children, both in New South Wales and Canberra. I did not hear evidence from Mr Robertson. At its highest the statement of Mr Robertson records Mr Percy's agreement that on other occasions prior to the death of Elizabeth Tuohy, whilst on beaches in New South Wales he had sordid thoughts towards children, and his agreement that he might have committed other offences had not the children been in the company of their parents. The note records that police had no evidence to connect Mr Percy to any other killings. Only one item of "evidence" was advanced. When questioned about one killing in Sydney he is recorded as having said "I could have done it but I can't remember". The statement of Mr Robertson merely reports that that alleged comment had been conveyed to him by an unidentified police officer. The circumstances in which the comment was made (if it was) are unknown. There is no other evidence, at all, to link Mr Percy to any other killings. I have considered this material, as I am entitled to do because in conducting a major review I am not bound by the rules of evidence (s.38), but, having considered that material, it is apparent that I could give little weight to it. It is not surprising that there was such speculation at the time of Mr Percy's arrest and trial, but it is important that speculation based on so little evidence should not distract the court from the task of evaluating the credible evidence which is available for scrutiny.

Those indirect references are the only references to the articles in His Honour's decision. It is to be assumed that he was referring not only to the articles with which I am concerned, but also to the articles in The Age referred to in paragraph 14 above and possibly to other examples of "speculation" by the media.

80. The Sunday article occupies, with illustrations, almost a full page of the tabloid size newspaper. It is entitled (by an unknown hand) "Don't let him out". It has two components. The first is an account of an interview with the father of Mr Shane Spiller, the "young boy" referred to in paragraph 6 of the decision of Mr Justice Eames, set out in paragraph 6 above. The interview describes in detail the experiences of Mr Spiller on 20 July 1969, their effect on his life since, and his fear that Mr Percy "would be released and would go after him". The second component states that "police in three states suspect there were eight other victims" and goes on to expand on that statement. It concludes "Prison sources said Percy, who has served 28 years, had been a model prisoner."

83. The Wednesday article occupies, with illustrations, about one half of a page of the full size newspaper. It is entitled (by an unknown hand) "Never let him out". It consists of an account of an interview with a former detective who questioned Mr Percy soon after the killing, and prepared a brief for the coroner. The detective describes his view of Mr Percy at the time and his opinion that he would still be a danger to the community. The Wednesday article lists the same disappearances and killings of children as the Sunday article and indicates that Mr Percy has been questioned in connection with those events.

87. As Wilson J said in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 ("the BLF Case") at 133, "The jurisdiction to deal with contempt is one which is to be exercised with great caution". It was common ground that a charge of contempt must be proved beyond reasonable doubt (Witham v Holloway (1995) 183 CLR 525); and that the test is whether there is either an actual interference with the administration of justice (which is not alleged here) or "a real risk, as opposed to a remote possibility that justice will be interfered with" (per Gibbs CJ in the BLF Case at 56).

90. No argument was directed to the question of intent. As McHugh JA said in Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695 at 708-9:

. . . proof of an actual intention to interfere with proceedings is unnecessary. The "intent may properly be inferred from the articles themselves and the circumstances under which they were published": R v Tibbits [1902] 1 KB 77 at 88. The rule that proof of an intention to interfere is unnecessary on a charge of criminal contempt is an anomaly, explicable only on historical grounds. But the rule is too deeply rooted for this Court to say that proof of a guilty intent to interfere in proceedings is a necessary element in the charge. Decisions, binding on this Court, make it plain that absence of an intention to interfere is never decisive: John Fairfax & Sons Pty Ltd v McRae ((1955) [1955] HCA 12; 93 CLR 351 at 371); [the BLF Case] (at 56).

94. I did not understand counsel for the applicant to challenge the submission for the respondent that the jurisdiction to punish for contempt is "to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case" or "a real and definite tendency to prejudice or embarrass pending proceedings". (Emphasis added). Those passages are taken from the joint judgment of Dixon CJ, Fullagar, Kitto and Taylor JJ in John Fairfax & Sons Pty Ltd v McRae at 370 and 372 respectively. The second passage was specifically adopted in the BLF Case by Gibbs CJ at 56, and the first by Mason J at 99, Wilson J at 133 and Brennan J at 166.

97. It is interesting to note, however, that the first passage appears in John Fairfax & Sons Pty Ltd v McRae in the course of the following consideration of relevant principle as to the summary jurisdiction to punish for contempt:

Its practical justification lies in the fact that in general "the undoubted possible recourse to indictment or criminal information is too dilatory and too inconvenient to afford any satisfactory remedy" . . . . On the other hand, because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution, and, in this particular class of case, to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case. A penalty will not be imposed in its exercise "unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference" . . . (Emphasis added)

Thus the principle that the contempt must relate to the particular case relates to the summary jurisdiction to punish for the offence and is grounded by their Honours in the need for "the arbitrary and summary interference of the court to enable justice to be duly and properly administered without any interruption or interference". That is, the principle is founded in the need for immediate action.

102. These applications have been brought to the Court, as the Solicitor-General explained, in accordance with the procedure laid down by section 46 of the Prosecutions Act for an application by the Attorney-General to a court for punishment of a person for a contempt of court. Whether that procedure can be described as "summary", in the sense described in the passage cited above, is a question which it is not necessary for me to resolve. The charges with which I am concerned do relate specifically to a particular case, being the major review in respect of Mr Percy which was conducted by Mr Justice Eames in 1998. I note, however, that the originating motions were filed on 15 February 1999, five months after the publication of the articles and eight months before this matter came on for hearing. It is also relevant that section 46(1A) of the Prosecutions Act provides;

(1A) For the avoidance of doubt it is declared that sub-section (1) applies--

. . .

(b) irrespective of whether the contempt is committed in relation to a pending proceeding or otherwise;

109. It is convenient to deal first with the second particular of the charge; that is, whether, in each case:

the relevant article had a tendency or was calculated to interfere with the due administration of justice in that:

(b) the article had a tendency or was calculated (in the sense of objectively likely) to influence the Honourable Mr Justice Eames in his decision-making process.

1. Is it the law that if a publication has a tendency or is objectively likely to influence a judge in a decision-making process, that publication therefore has a tendency to interfere with the due administration of justice?

2. If yes to 1, does that same principle apply to a judge conducting a major review under the Act?

3. If yes to 2, was there a real risk (see paragraph 21 above) that the articles in question would influence Mr Justice Eames in his decision-making process in the major review before him?

120. Lord Diplock pointed out in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 308:

There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of court. There is a dearth of rational explanation or analysis of a general concept of contempt of court which is common to the cases where it has been found to exist.

His Lordship went on at 309 to lay down three general requirements of the due administration of justice, the second of which is significant in the present context and reads, so far as here relevant:

The due administration of justice requires . . . that all citizens . . . should be able to rely upon obtaining in the courts the arbitrament of a tribunal . . . whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; . . .

Conduct which is calculated to prejudice any of these three requirements [or to undermine the public confidence that they will be observed] is contempt of court.

The words which I have enclosed in square brackets are relevant to the first particular of the charge and may be ignored for present purposes. The passage from which this extract is taken was adopted by Brennan J in the BLF Case and has been adopted on a number of occasions by Judges of this Court: See Watts v Hawke [1976] VicRp 77; [1976] VR 707 at 711 (Kaye J); ANZ Banking Group v Richard Ellis [1994] VicRp 20; [1994] 1 VR 328 at 330-331 (Coldrey J_); R v MacDonald_ [1994] VicRp 29; [1994] 1 VR 414 at 419 (Hampel J). It was recently adopted by the Full Court of the Supreme Court of Western Australia in Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 (see pages 320 and 346-347). I accept the submission of Mr Caleo, who replied for the applicant in the unavoidable absence of his leader, that the significance of that passage is that it goes no further than to define the interests which are protected by the law of contempt.

128. In the BLF Case Mason J at 100-103, after posing the question:

Are judges resistant to extraneous influence and prejudice?

referred in the following terms to a number of judicial pronouncements as throwing light on the answer:

It seems that judges are as divided in opinion about themselves as they sometimes are about the answer to a question of law. Some have vigorously repelled the suggestion that judges could succumb to extraneous prejudice or influence:

I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge.

said Lord Salmon in Attorney-General v British Broadcasting Corporation [1981] AC 303, at pp 342-343. To the same effect is the judgment of Knox C.J., Gavan Duffy and Starke JJ. in Bell v. Stewart (1920) 28 CLR 419, at pp 425-426_; Vine Products Ltd. v. Green_ [1966] 1 Ch 484, at p 496; Report of the Salmon Committee on The Law of Contempt as it Affects Tribunals of Inquiry (1969) Cmnd. 4078, par. 26. Other judges have freely confessed the frailty of their brethren, if not of themselves. Thus, Frankfurter J., speaking of the judge, said in Pennekamp v. Florida [1946] USSC 101; (1946) 328 US 331, at p 358 [1946] USSC 101; (90 Law Ed 1295, at p 1309) , "He is a human being", quoting Humphreys J. in R. v. Davies; Ex parte Delbert-Evans [1945] 1 KB 435, at pp 442-443, and went on to say: "jurors are not the only people whose minds can be affected by prejudice" (1946) 328 US, at p 358 (90 Law Ed, at p 1310). See also the dissenting opinion of Frankfurter J. in Craig v. Harney [1947] USSC 124; (1947) 331 US 367 (91 Law Ed 1546). Perhaps the strongest expression of this view is to be found in the dissenting judgment of Isaacs and Rich JJ. in Bell v. Stewart (1920) 28 CLR 419 at p 433 on which Deane J. relied. There is, too, the statement of Viscount Dilhorne in British Broadcasting Corporation [1981] AC, at p 335, although it should be noted that his Lordship was careful to emphasize that the only relevant prejudice is that which is likely to affect a decision on the issue in court proceedings. And Frankfurter J. in the two cases to which I have referred was not saying that the judge was as susceptible as the juror. He was making the point that the judge should not be embarrassed by the need to put out of his mind extraneous matter the effect of which is impossible to assess. This was the point made by the Phillimore Committee in its Report on Contempt of Court (1974) Cmnd. 5794, par. 49:

It would, we think, be going much too far to say that professional judges are never influenced by what they may read or hear, but they are by their training and experience capable of putting extraneous matter out of their minds. A judge, therefore, does not really need the law of contempt to protect him from prejudicial matter, although wholly unrestricted comment immediately before and during a hearing could be embarrassing, and might constrain him to demonstrate in some manner that he had not been influenced by it.

Obviously judges are more capable than jurors of putting aside prejudicial matter, including public prejudice. Objectivity and independence are the qualities which judges are expected to bring to judicial determination. I should have thought, along with Northrop J. at first instance, that to say that there is a risk the judges of the Federal Court may succumb, even subconsciously, to pressures arising from public prejudice flowing from the proceedings of the Commission is somewhat fanciful. But it is submitted that three judges of the Federal Court have acknowledged that there is a risk of this occurring. In my view that is not what the Full Court of the Federal Court decided. All that Deane J. said was that there would be a tendency "to create an adverse environment for the future and proper conduct of the proceedings" and that they would be liable to bring, "subconsciously", pressures on the judges (1981) 53 FLR, at pp 400-401; 37 ALR, at pp 474, 476. This, it seems to me, falls short of finding that there is a "likelihood" or "substantial risk" of serious prejudice to the Federation in a relevant sense.

With respect to witnesses it was conceded that one positive benefit was the possibility that witnesses who might otherwise be reluctant to come forward to give evidence in the inquiry would be encouraged by the publicity given to the inquiry to make themselves available. On the other hand, it seems to have been thought that this positive benefit was outweighed by the possibility that witnesses, perhaps not called before the inquiry, might be influenced as to what they should say in evidence before the court by the publicity given to the inquiry which, it is assumed, will be hostile to the Federation. The risk of this occurring is a mere matter of speculation, not a matter of genuine inference. It simply cannot be assessed in terms of practical reality as a likelihood or as a substantial risk of serious prejudice. We simply have no basis for predicting that it will happen at all, or if it does happen, what form it will take, or what its consequences may be. I am not aware of any case in which a possibility of this kind has formed the basis of an apprehended contempt justifying restraint.

140. Several things can be said about His Honour's summation of the authorities on the question which he poses at the outset; "Are judges resistant to extraneous influence and prejudice?" To begin with, he makes clear from the beginning that the question is one of fact; some judicial pronouncements on the subject give the impression that the answer is such that the question must be one of law. Wilson J in the BLF Case at 136, for instance, begins, "The weight of authority clearly favours the view that the judges of superior courts are not likely to be affected by the publication of material touching the proceedings upon which they are to adjudicate". But, in the consideration of this question of fact (as to which see also In re Lonrho PLC [1990] 2 AC 154 at 209), on what evidence are these confident pronouncements made? Mason J rightly, with respect, dismisses the suggestion that publicity given to the inquiry will influence witnesses in what they say before the court, on the ground that "the risk of this occurring is a mere matter of speculation, not a matter of genuine inference"; and "we simply have no basis for predicting that it will happen at all". It is difficult to know what the evidence is for the confident pronouncements about the invulnerability of judges to external pressure. The inference might be that it is a matter so notorious as to be able to be the subject of judicial notice.

143. It is convenient to set out at more length and to consider some of the passages cited above by Mason J in the BLF Case. The words of Lord Salmon in Attorney-General v British Broadcasting Corporation suggests that Lord Salmon had never heard it suggested of any judge, from any court, in any country, at any period, that that person was not fit to be a judge. This would seem improbable. To say that a judge who would be influenced by the media is not fit to be a judge does not remove such a judge from that position. A judge of whom that suggestion is made is still a judge, and must be considered as one of those in respect of whom Mason J's question must be answered.

146. The passage from the dissenting judgment of Isaacs and Rich JJ in Bell v Stewart to which Mason J refers reads at 433:

Clearly the pending case was one where the public tribunal ought to have been left uninfluenced by outside pressure or suggestion or ridicule. A Judge is only human, and may, particularly in the position of an arbitration judge, even unconsciously, be affected by public statements as to alleged "notorious facts". It is the right of the parties to have the judgment of the arbitrator unswayed irregularly by newspaper or other outside comments, the publishers by such comments constituting themselves unsworn witnesses, without being subject to cross-examination.

On the other hand, the majority (Knox CJ, Gavan Duffy and Starke JJ) said at 425:

It is ridiculous to suppose that the arbitration law was, or could, in the hands of the President [Mr Justice Higgins], be, in any way obstructed or interfered with by the published words.

152. Jacobs J in Attorney-General v Nationwide News Pty Ltd (1986) 43 SASR 374 at 382 and following cites at length and with approval the remarks of Frankfurter J in Pennekamp v Florida and Craig v Harney to which Mason J refers. A few extracts will suffice:

. . . the judiciary cannot function properly if what the press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the court. A judiciary is not independent unless courts of justice are enabled to administer law by absence of pressure from without, whether exerted through the blandishments of reward or the menace of disfavour . . .

No judge fit to be one is likely to be influenced consciously except by what he sees and hears in court and by what is judicially appropriate for his deliberations. However, judges are also human, and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process. . . .

[A judge] is a human being, and while I do not suggest that it is likely that any judge, as the result of information which had been improperly conveyed to him, would give a decision which otherwise he would not have given, it is embarrassing to a judge that he should be informed of matters which he would much rather not hear and which make it much more difficult for him to do his duty. . . .

[Quoting with approval Humphreys J in R v Davies [1945] 1 KB 435 at 442-443] `I venture to think that no judge with long criminal experience will fail to be able to recall instances in which the publication of matters such as that to which I have referred has had the effect of making the task of a judge extremely difficult, and no one has the right to publish matter which will have that effect.' . . .

If men, including judges and journalists, were angels, there would be no problems of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. . . The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise. It is a condition of that function - indispensable for a free society - that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the under-tow of extraneous influence.

The thrust of the articles was directed to what the judge should do on a matter immediately before him . . .

Even a conscientious judge not a layman, and not merely one serving under a short judicial tenure, may find himself in dilemma when subjected to a barrage pressing a particular result in a case immediately before him. He may not unnaturally be moved to do what is urged, or he may be impelled to display his independence and not give to the arguments on behalf of the motion for a new trial that serene and undisturbed consideration which often leads judges to grant such a motion. It has not been unknown that judges persist in error to avoid giving the appearance of weakness and vacillation. Thus, one or another of the litigants before the court may have been denied that disinterested exercise of judgment which is of the essence of the judicial process. The demands found to have been made upon the judge by these papers may agitate even a conscientious judge. He may himself be unaware of the extent to which his powers of reason have not the sway they would otherwise have. Or a judge, proud of his independence, may unconsciously have his back stiffened, and thereby his mind, when hearing the motion for a new trial and passing on its validity. Judges are not merely the habitations of bloodless categories of the law which pursue their predestined ends.

The fact that it cannot be demonstrated how the delicate balance of an adjudication was tampered with, or whether it was, does not prove that it was not tampered with.

165. The passage to which Mason J referred from the speech of Lord Dilhorne in Attorney-General v British Broadcasting Corporation at 335 reads:

It is sometimes asserted that no judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the court and he will not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the discharge of judicial duties. Nevertheless it should, I think, be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. As Lord Denning MR said the stream of justice must be kept clean and pure.

169. It is worth citing at some length the passage from the judgment of Humphreys J (with whom Oliver J agreed at 445) in R v Davies [1945] 1 KB 435 at 442-443, cited above by Mason J from Frankfurter J in Pennekamp v Florida:

I think it is a fallacy to assume that the only object of imposing punishment for contempt of court in a criminal case is to prevent a juryman, who may be trying the person affected, from reading matter of which he ought to know nothing. There is also the judge to be considered, and, while I am not saying for a moment that any person sitting in a judicial capacity, who may, be it remembered, be a chairman of quarter sessions, who may or may not be a lawyer, or a recorder, or it may be, of course, one of the judges of the King's Bench Division, would be affected by anything he might read, I think it is a fallacy to say or to assume that the presiding judge is a person who cannot be affected by outside information. He is a human being, and while I do not suggest that it is likely that any judge, as the result of information which had been improperly conveyed to him, would give a decision which otherwise he would not have given, it is embarrassing to a judge that he should be informed of matters which he would much rather not hear and which make it much more difficult for him to do his duty. To repeat the words I have already read from the judgment of Wills J in R v Parkes [1903] 2 KB 432.

The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists - namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it.

It seems to me that the bringing before the minds of judges who have to try an appeal in a criminal case matters which they do not desire to know, and which if brought to their attention are likely to embarrass them in the fair and impartial consideration of the case, is wrong. Whether that view is right or not, I cannot say. It is my own opinion and I express it as such, but I venture to think that no judge with long criminal experience will fail to be able to recall instances in which the publication of matters such as that to which I have referred has had the effect of making the task of a judge extremely difficult, and no one has the right to publish matter which will have that effect.

The passage there cited from R v Parkes was cited with approval by Kaye J in Watts v Hawke [1976] VicRp 77; [1976] VR 707 at 711.

176. To similar effect is the statement by Reed J in Attorney-General v Tonks [1939] NZLR 533 at 541:

I agree that a judge would not consciously allow himself to be influenced by the comment, but its presence would be extremely disturbing to a Judge in the discharge of his duty.

180. Mr Houghton cited a number of authorities for the opposing view. Maugham J in In re The William Thomas Shipping Company Limited; HW Dillon and Sons Ltd v the Company [1930] 2 Ch 368 at 373, considered that that a judge in the Chancery Division (not being concerned with the effect of the alleged contempt on the mind of a jury or in preventing witnesses from coming forward):

starts on the footing that only in the rarest possible case is it likely that the publication by a newspaper of such a statement as I have here to consider will affect the course of justice in the sense of influencing, altering or modifying the judgment or judgments which the Court will ultimately have to deliver.

184. McHugh JA in Attorney-General for New South Wales v John Fairfax & Sons and Bacon says at 709:

Despite some statements to the contrary in earlier cases, the courts now recognise that it would be wrong to hold that a publication constitutes a contempt because it might influence a judicial officer. Ex parte McRae; Re John Fairfax and Sons Pty Ltd (1954) 54 SR(NSW) 165 at 177; 71 WN 113 at 121; R v Duffy Ex parte Nash [1960] 2 QB 188 at 198; Vine Products Ltd v Green [1966] Ch 484 at 496; Attorney-General v Times Newspapers Ltd [1974] AC 273 at 301; [the BLF Case] (at 58, 102 and 136).

In the passage there referred to from Vine Products Ltd v Green, Buckley J says:

. . . although I suppose there might be a case in which the publication was of such a kind that it might even be thought that it would influence the mind of a professional judge, it has generally been accepted that professional judges are sufficiently well equipped by their professional training to be on their guard against allowing any such matter as this to influence them in deciding the case, and it is not suggested in the present case that anything has been done to prejudice the trial of this action in that sort of way.

With respect, that passage does not support the generalisation of McHugh JA; and the case before me is one where that precise suggestion has been made. The passage relied on by McHugh JA from Attorney-General v Times Newspapers at 301 is no doubt that where Lord Reid said "it is scarcely possible to imagine a case where comment could influence judges in the Court of Appeal or noble and learned Lords in this House". Again, that passage does not go as far as McHugh JA found. Gibbs CJ in the BLF Case at 58 adopts the passage cited by Mason J from Lord Salmon in British Broadcasting Corporation and concludes:

I find it quite impossible to believe that any judge of the Federal Court who may ultimately deal with the proceedings in that court will be influenced in his decision by anything he may have read or heard of the evidence given or statements made at the enquiry.

193. Kirby P in Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540, also cited by Mr Houghton, referred at 550 to the above passage cited by Mason J in the BLF Case and continued:

All human beings are susceptible to the opinions put forward every day by the media or indeed by other institutions having a public voice. To deny this in the cases of judges would be suggesting that judges were in some sense superhuman, entirely aloof from the pressures to which other members or the public are susceptible. The training and experience of a judge may assist the judge to recognise such influences and consequently to attempt to ignore them or to allow for and discount them. But a residuum of prejudice sometimes may remain. In such a case the question becomes whether, as was stated in the BLF Case, the resulting risk [that justice will be interfered with] is a substantial one or not.

197. I would, with respect, adopt that passage, with one alteration, as summarising for present purposes the principle which underlies the second particular of the charges with which I am concerned. In my view, the word "prejudice", while relevant to the issue before Kirby P in Civil Aviation Authority, takes the matter out of the terms of the charge before me. The appropriate word, in this context, might be "disturbance" (see the passage cited from Attorney-General v Tonks in paragraph 36 above); or, better still, "embarrassment" (see the last sentence of the passage cited by Mason J from the Report of the Phillimore Committee in the extract from the BLF Case in paragraph 29 above; the third paragraph of the passage cited from Pennekamp v Florida in paragraph 33 above; and the passage cited from R v Davies in paragraph 35 above).

200. In my view, the concept of influencing a judge "in a decision-making process", as opposed to influencing a judge "in a decision", brings into play the matters described by Humphreys J in R v Davies and by Frankfurter J in Pennekamp v Florida and Craig v Harney, cited with approval by Jacobs J in Nationwide News (see paragraph 33 above) and considered by Mason J in the BLF Case. And causing disturbance or embarrassment thereby could, in my view, create a real risk of interference with the due administration of justice. I do not find, in the authorities which are binding upon me, any decision to the effect that the causing of such disturbance or embarrassment could never constitute an interference with the due administration of justice so as to amount to contempt of court. To that extent, therefore, I find the answer to the first question posed in paragraph 27 above to be Yes: if a publication has a tendency or is objectively likely to influence a judge in a decision-making process by causing disturbance or embarrassment to the judge in the manner which I have described, that publication may therefore be found to have a tendency to interfere with the due administration of justice.

203. In reaching that conclusion, I am not unmindful that a charge of contempt must be proved beyond reasonable doubt; and that the test is whether there is either an actual interference or a real risk of interference with the due administration of justice (see paragraph 21 above). The operation of those principles serves to effectuate the process of balancing public interests which is referred to by Mason J in the BLF Case at 98-99:

The argument [in that case] that there is a risk of contempt has in my view drawn too heavily on the principles that have been applied in cases in which newspapers have published material in advance of a criminal trial. These principles have been fashioned to meet the dangers of trial by newspaper when the very occasion for the report in the newspaper is the pending or expected criminal trial and the report, generally of a sensational and dramatic kind, is directed to the very issue which will arise at the trial - the guilt or innocence of the accused. In such a case the paramount public interest is that of maintaining the administration of justice free from prejudice and interference. The countervailing public interest - freedom of discussion - is exclusively related to the guilt or innocence of the accused, the issue to be determined at the trial. In this situation freedom of discussion has no independent value and is therefore readily subordinated to the public interest in the administration of justice. Consequently the test to be applied is whether the publication has a tendency to interfere with the administration of justice.

His Honour went on to contrast the Royal Commission with which he was concerned with the criminal proceedings to which he had referred and concluded:

Accordingly the test to be applied here in determining whether there is an apprehended contempt is one which lays emphasis on the need to establish a substantial risk of serious injustice as an essential qualification of obtaining relief.

That, it seems to me, would also be the case in respect of the proposition set out in the last sentence of the preceding paragraph.

210. I am not asked, however, to decide whether there was a real risk that the articles would influence a hypothetical generalised judge in a decision to be made at some time in the future. That was, in effect, the task before the High Court in the BLF Case. What I am asked to decide is whether there was a real risk that the articles would influence Mr Justice Eames in his decision-making process in the major review, which was to be conducted in accordance with the Act, and which was completed more than twelve months ago.

213. Turning therefore to consider the matter before me, the issues in the matter before Mr Justice Eames were the liberty of Mr Percy and the safety of the community. That proceeding was, accordingly, more analogous to a criminal trial than to the proceedings of the Royal Commission which was in question in the BLF Case. However, it should be noted on the other hand that in conducting the major review relating to Mr Percy, the Court was, by virtue of section 38 of the Act (see paragraph 10 above), not bound by the rules of evidence. The effect of that provision highlights the distinction between on the one hand, the general concept of Lord Diplock in Attorney-General v Times Newspapers, cited in paragraph 28 above, upon which the applicant in this matter relied, and on the other hand, the issue which I am called upon to determine. It was open to Mr Justice Eames, in making his decision, to rely on material which was not "proved in evidence adduced before [him] in accordance with the procedure adopted in courts of law". And indeed His Honour did consider such material, as appears in the extract from his decision cited in paragraph 18 above.

216. It is apparent from the passage from the transcript in paragraph 15 above and the extracts from His Honour's decision in paragraph 18 above that His Honour saw the "media speculation", including the articles in question, as causing him some disturbance and even embarrassment. Whether there was a real risk that that media speculation would interfere with the administration of justice is another matter.

219. I am not asked to decide whether the articles influenced Mr Justice Eames in his decision. If that were the task before me, while superficially it could be regarded as an invidious task, it would in fact be a very simple task. It is not necessary to say, but for the avoidance of doubt I set it down here, that I have no doubt, any more than did counsel for Mr Percy or counsel for the Attorney-General, on the major review (see paragraphs 14 and 15 above), that Mr Justice Eames, if he had been bound by the rules of evidence, would not have been influenced in his decision by either of the articles.

222. But it is that question with which the authorities principally deal; and hence their concentration on the issue discussed above, of whether a hypothetical judge could be influenced in a decision by whatever statement is in consideration by the Court.

225. It is relevant that, so far as possible killings of other children were concerned, there was before Mr Justice Eames material of a similar kind to that contained in the articles, namely the statement of Detective Senior Constable Robertson (see paragraph 18 above, both as to that statement and as to his Honour's summation of his decision thereon). Further, the material in the articles relating to the events of 1969 was not necessarily relevant to the decision which his Honour had to make as to whether he was "satisfied on the evidence available that the safety of [Mr Percy or members of the public would] be seriously endangered as a result of the release of [Mr Percy] on a non-custodial supervision order" in 1998. The only matters in the articles which might be said to be directly relevant to his Honour's decision were the expressions of the fears of Mr Spiller should Mr Percy be released and the view of the former detective that Mr Percy would still be a danger to the community, both of which were repeated, in effect, in the headlines. Those were by no means the only expressions of opinion on that subject which were before His Honour; his decision refers at paragraph 20 to the reports of three expert psychiatrists on Mr Percy's condition at the time of the hearing before him which "were consistent in their assertion that . . . [Mr Percy] should not be released".

228. I am concerned here with the decision-making process of a judge conducting a major review under the Act, who is in that capacity not bound by the rules of evidence. In my view, it would be difficult to find, as a matter of law, that the publication of material which, by virtue of its being possibly relevant material which is additional to the evidence formally before the Court, has a tendency or is objectively likely to influence that decision-making process, of itself gives rise to a real risk of interference with the due administration of justice by influencing the judge in the decision-making process. A court conducting a major review "is entitled to inform itself in such manner as it thinks fit" (section 38 of the Act). The answer to the second question posed in paragraph 27 above is therefore No: the principle stated in paragraph 41 above does not apply to a judge conducting a major review under the Act.

231. The effect of the articles was, in that regard, merely to publish that material, thus enabling the judge to inform himself thereby (and I have no evidence as to whether His Honour saw the Sunday article) and from which he could, as he was entitled to do, inform himself if he thought fit to do so.

234. If I am wrong in that view, and the publication of such material in those circumstances can be said, as a matter of law, to give rise to a real or substantial risk of interference with the due administration of justice, I could not, in this case, be satisfied beyond reasonable doubt that the publication of these articles had a tendency to do so. The material derived from the interviews related to the events of 1969, evidence as to which was before His Honour. The views of Mr Spiller and the detective as to the course which His Honour should take were based on the events of 1969 and the views which they had then formed of Mr Percy. The material concerning the disappearances and killings of other children related to the period before those events. The decision which His Honour had to make turned on his satisfaction as to the possibility of serious endangerment of Mr Percy and of members of the public should Mr Percy be released from custody in 1998. That was a matter to be decided on a consideration of Mr Percy as he was in 1998, twenty-nine years or more after the matters considered in the articles.

237. The next matter for consideration, however, is whether the articles, and in particular the headlines, could be read as recommendations or directions to His Honour to decide the issue before him in a particular way: that is, by confirming the custodial supervision order. (That question is also relevant to the consideration of the first particular of the charge.) Counsel for the applicant submitted that that was the effect of the headlines. Counsel for the respondent submitted that each headline was merely an accurate summary of the view expressed by the individual the subject of the interview described in the relevant article.

240. My perception would be that, whatever the intention of their unknown authors, those headlines would be read by most people primarily as a recommendation or even a direction to the judge. It is to be noted (see paragraph 15 above) that Mr Justice Eames himself formed the view, on reading the Sunday article, that the headline "Don't let him out" was addressed to him. (As I have said, there is no evidence before me that His Honour saw the Wednesday article, and no comment by him as to that article is recorded.)

243. I would be of the view that a headline of that kind could be found to give rise to a real risk of interference with the due administration of justice for the kinds of reasons discussed by Humphreys J in R v Davies, by Frankfurter J in Pennekamp v Florida and Craig v Harney, by Kirby P in Civil Aviation Authority, and by the Phillimore Committee. However, on the basis set out in paragraph 51 above, I am not satisfied beyond reasonable doubt that that was the case here.

246. For the reasons I have given, the charge before me fails, insofar as it depends on the second particular.

the relevant article had a tendency or was calculated to interfere with the due administration of justice in that:

(a) the article had a tendency or was calculated (in the sense of objectively likely) to undermine public confidence in the administration of justice by giving rise to a serious risk that the Supreme Court of Victoria (constituted by the Honourable Mr Justice Eames) would appear not to have been free from any extraneous influence;

255. Returning to the passage in paragraph 28 above extracted from the speech of Lord Diplock in Attorney-General v Times Newspapers, the words there enclosed in square brackets now become relevant, and that portion of the extract which is significant for the purposes of the second particular of the charge is repeated here for convenience. Having set out the three requirements of the due administration of justice, His Lordship concluded:

Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.

It is the passage which I have underlined which is the basis of the first particular of the charge.

260. I have already found that the headlines would have been read by most people primarily as a recommendation or even a direction to the judge, and noted that Mr Justice Eames considered not only that the headline of the Sunday article "Don't let him out" was addressed to him, but also that:

it might give the public an impression that it is an appropriate exercise to be seen to attempt to influence the court in the outcome of a case.

The creation in the public mind of that kind of impression is not unrelated to the substance of this particular of the charge.

265. To begin with, it was the submission of Mr Houghton that if there was no serious risk that any judge of this Court could have been influenced by either of the articles, it must follow as a matter of logic that no fair-minded member of the public could have apprehended that that might be the case.

268. Mr Caleo, for the applicant, in reply, submitted that that argument disclosed a logical fallacy. He referred to Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 which was an appeal against the refusal of the trial judge to discharge a jury. Mason CJ and McHugh J, with whom Toohey J agreed, said at 51-52, after considering local authorities as well as authorities from other jurisdictions:

In [R v Gough [1993] UKHL 1; [1993] AC 646], the House of Lords rejected the need to take account of the public perception of an incident which raises an issue of bias except in the case of a pecuniary interest. Behind this reasoning is the assumption that public confidence in the administration of justice will be maintained because the public will accept the conclusions of the judge. But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the "lay observer" . . . , the "fair-minded observer" . . . , the "fair-minded, informed lay observer" . . . , "fair-minded people" . . . , "the reasonable or fair-minded observer" . . . , the "parties or the public" . . . , and the "reasonable person" . . . abound in the decisions of this Court and other courts in this country. They indicate that it is the court's view of the public's view, not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored. Indeed, as Toohey J pointed out in [Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 585] in considering whether an allegation of bias on the part of a judge has been made out, the public perception of the judiciary is not advanced by attributing to a fair-minded member of the public a knowledge of the law and the judicial process which ordinary experience suggests is not the case.

272. Given the basis upon which I have found that the second particular of the charge is not made out, the last sentence of the above passage is of particular relevance. But in any case, I accept the submission of Mr Caleo that the finding by a court that a judge would not be influenced in such a way as to amount to contempt does not logically bring with it the assumption that a fair-minded lay observer would reach the same conclusion. The distinction is that between a court ensuring that justice is done and a court ensuring that justice is seen to be done.

275. In respect of this particular of the charge, Mr Graham relied on two cases where press comment had in effect involved a recommendation as to the proper sentence to be imposed on a person found guilty of a serious offence. The matter before Mr Justice Eames, involving as it did the liberty of Mr Percy and the safety of the community, was clearly analogous to such cases.

278. The first authority cited by Mr Graham was the decision of the Full Court of the Supreme Court of New Zealand in Attorney-General v Tonks. Myers CJ said at 537:

The Court must not only be free - but must also appear to be free - from any extraneous influence. The appearance of freedom from any such influence is just as important as the reality. Public confidence must necessarily be shaken if there is the least ground for any suspicion of outside interference in the administration of justice. Any publication therefore that states or implies that the sentences imposed by the Court are, or may be, affected by popular clamour, newspaper suggestion, or any other outside influence is, in my opinion, calculated to prejudice the due administration of justice. (Emphasis in the original)

And at 538, after referring to the passage from The William Thomas Shipping Co Ltd cited in paragraph 37 above, His Honour continues:

Nor, indeed, is a common law Judge in the least likely to be affected consciously by any such publication. . . . I can think of few things more calculated to injure the due administration and course of justice in criminal cases in public opinion than that any newspaper or newspapers should be permitted to appear to dictate to the Courts what its sentence should be in any particular case.

284. Mr Graham also cited from Attorney-General v Nationwide News a passage from the judgment of Jacobs J, who said at 381:

. . . in criminal proceedings, where the liberty of the subject is involved the courts should and do more readily intervene to protect an accused person from unfair prejudice (Attorney-General v British Broadcasting Corporation [1981] AC 303 at 315, per Lord Denning MR, whose dissenting judgment was preferred in the House of Lords) . . . The impugned publication in this case, in my judgment, goes far beyond comment or criticism of the kind referred to by Lord Reid. It is an unrestrained and emotional vilification of the convicted man and a publication which exposes a party to "public and prejudicial" - and I would add, inaccurate and exaggerated - "discussion of the merits" of his case (per Gibbs CJ in [the BLF Case] at 57) while his sentence is still under review, and in my opinion it exceeds the legitimate bounds of freedom of the press. It is not merely that it is prejudging an issue, for that might ordinarily have no impact upon an appellate court; it is objectionable because it creates a climate inimical to the due administration of justice, and to the appearance of due administration of justice which underpins public confidence in the role of the courts as guardian of our democratic freedoms - which in addition to freedom of speech include the right of a convicted person to be dealt with fairly and impartially. A court, even an appellate court, however resolute its judges, however impervious to outside influence, is still a court of ordinary humans charged to the best of its ability to "hold the scales of justice with equal poise". Simply because it is a human institution it cannot fail to be aware of the dilemma posed by what in this case was an orchestrated arousal of public sentiment by the publication of material, some of which was inaccurate, and much of which was not before the Court at all. The dilemma is that if it increases the sentence it is perceived to have yielded to the entreaties of the press, but if it declines to do so, it invites further intemperate criticism, not only on a personal level, but of the due processes of the law. The integrity of the judicial system in my judgment demands that freedom of the press should not extend to prejudgment of an issue, even before an appellate court, in a way which so heightens that dilemma.

I should say that, in citing this passage, Mr Graham was not, as I understand it, suggesting that the word "orchestrated" was relevant to the articles in question.

289. It should be noted that the New South Wales Court of Appeal found in Civil Aviation Authority v Australian Broadcasting Corporation that there was no general principle that any media pre-judgment of a pending case amounted to contempt.

292. As to Nationwide News, Mr Houghton submitted that it could not stand against the BLF Case. However, it should be remembered that I am here concerned with actual published articles, compared with the role of the High Court in the BLF Case, where the issue was whether the hearing by a Royal Commission which was yet to sit would constitute a contempt in the future. The issue in Nationwide News is far closer to that which is before me. Mr Houghton submitted that in any case Jacobs J was in dissent in that case. However, his dissent was on the application of principle, not on the principle itself; Matheson J at 395 approved the second passage from the judgment of Myers CJ in Tonks, which is cited in paragraph 63 above.

295. Mr Houghton submitted that the passage cited above from Tonks was not the law in Australia. He relied on Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd & Anor (1937) 37 SR (NSW) 242, decided before Tonks but apparently not brought to the attention of the Court in that case, and in particular on the passage from the judgment of Jordan CJ, with whom the other members of the Full Court agreed, at 249:

It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

299. In Hinch v Attorney-General (Vict) [1987] HCA 56; (1987) 164 CLR 15 at 18, Mason CJ referred to that passage as "the foundation of the modern law of contempt" and went on to say:

His Honour sought to balance the competing public interests: one, the need to protect the integrity of the administration of justice, and the other, the protection of freedom of expression, especially when that freedom of expression is exercised in relation to a topic which is, or should be, of concern to the public or a section of the public.

Where the topic of public discussion is removed from, or far more comprehensive in its reach than, the subject-matter of the litigation the risk of prejudice to the litigation arising from the publication is generally slight. Reference to the litigation which is merely incidental to the discussion is unlikely to occasion a substantial risk of prejudice. But where the topic of public discussion is closely related to the subject-matter of the litigation the risk of prejudice may very well be substantial.

In an appropriate case the court is empowered to entertain a defence of discussion of a matter of public interest and in doing so to engage in a balancing exercise to determine which of the competing matters of public interest should prevail.

But it is important to emphasize that in undertaking a balancing exercise the court does not start with the scales evenly balanced. The law has already tilted the scales. In the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice: BLF Case at 56, per Gibbs CJ. In Bread Manufacturers Jordan CJ was prepared to excuse a publication likely to prejudice a person who happened at the time to be a litigant if is occasioned "as an incidental but not intended by-product" of a discussion of public affairs. . . . In my opinion, the qualification forms an integral and important part of the principle enunciated by the Chief Justice.

308. In the end, the question posed by particular (a) of the charge must be decided, as a matter of judgment, balancing competing public interests as described by Jordan CJ in Bread Manufacturers, taking into account the other authorities to which I have referred, and considering the content and the style of the articles, including the headlines. To find the charge proved in respect of either article, I must be satisfied beyond reasonable doubt that that article had a tendency or was objectively likely to undermine public confidence in the administration of justice by giving rise to a serious risk that Mr Justice Eames would appear not to have been free from any extraneous influence.

311. Mr Houghton submitted that no reasonable reader could come to the conclusion that the Court would be likely to be influenced by the articles. He referred inter alia to Civil Aviation Authority v Australian Broadcasting Corporation where Kirby P said at 560:

Our citizens can readily distinguish between media opinions and journalists' "angles" on the one hand, and the solemn decisions of those in the courts who have the responsibility of decision-making based on all the evidence and full argument, on the other.

315. That statement of His Honour implies, rather than expresses, the point for which Mr Houghton seeks its support; that is, that the reader will not expect the court to be influenced by the articles. I do not think that that view can necessarily, from that statement, be attributed to His Honour. I must say that it is a view which I do not share. It is not necessary here, and I do not propose, to consider the various circumstances which lead me to that conclusion. It is not easy for a judge, inside the legal system, to assess to what extent, today, courts are uniformly held in respect even by the fair-minded members of the community referred to in the passage cited from Webb in paragraph 60 above. But I do not believe that it can be laid down as a matter of principle that even a fair-minded reader (adopting that adjective from the apprehension of bias cases such as Webb) would never expect the court to be influenced by a publication apparently recommending or directing a particular decision on such a matter as the appropriate sentence for a convicted person or the appropriate order on a major review under the Act.

318. As to the balance of competing public interest on the Bread Manufacturers principle, I note that, as Mr Caleo pointed out, the articles discuss the situation of Mr Percy; they do not discuss "public affairs". This was one of the first major reviews held under the Act, and the newspapers could, in that context, have considered as a matter of public interest whether or not the policy sought to be implemented by the Act was desirable, or whether the Act would be likely to be effective in carrying out that policy. They did not do so.

321. Having considered the matter, I am of the view that, were it not for the headlines, I would not find the charge proved in respect of either article. However, I have found that each headline would be read by most people as a recommendation or direction to the judge, and that finding, to my mind, carries with it an implication of a serious risk that the Court would appear not to have been free from the influence of that recommendation or direction.

324. Mr Houghton referred to Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65, where the House of Lords struck out a statement of claim summarily on a pleading summons. The facts were that plaintiffs sued for defamation on the basis of the headline and pictures in an article in the News of the World. The House of Lords found that people who read the whole article would find out that the pictures were computer generated and carried no defamatory imputations; and that "ordinary, reasonable, fair-minded readers" (per Lord Bridge of Harwich at 73) would read the whole article. That decision was criticised in Chakravarti v Advertiser Newspapers (1998) 193 CLR 519, also a defamation matter, by Kirby J who said at 574-575:

Respectfully, I cannot agree with their Lordships' opinion. In my view it ignores the realities of the way in which ordinary people receive, and are intended to receive, communications of this kind. . . . Many people, including not a few judges and jurors, do not look beyond headlines and photographs. . . . To the extent that dicta in Charleston or other cases suggest that the courts should attribute to the recipients of matter published in the mass media a close and careful attention to the entirety of the item published, I would not follow that opinion. I would not adopt its reasoning as part of the common law of Australia. To do so would be to defy common experience and, if I may say so, commonsense.

The ordinary reader will draw conclusions from general impressions. He or she will not re-read or review the matter complained of. Such a reader will tend to be specially influenced by headlines, bylines, graphics and the other techniques by which the mass media seek to communicate their principal messages to a mass audience.

329. I would, with respect, adopt that passage, which appears to me to be equally relevant to the matter before me as to the context in which it appears. In my view it cannot be assumed that the ordinary fair-minded newspaper reader will carefully read the whole of the articles. In any case, while the recommendation or direction to the judge, which I have found to be contained in the headlines, does not appear from the text of the articles themselves, that text does not (as did the text in Charleston) detract from the force of the headline, but rather underpins it.

332. For the reasons given, I am satisfied beyond reasonable doubt that each of the articles, incorporating, as they do, the respective headlines, has a tendency or is objectively likely to undermine public confidence in the administration of justice by giving rise to a serious risk that this Court, constituted by Mr Justice Eames, in the major review relating to Mr Percy, would appear not to have been free from any extraneous influence.

335. That being so, I find the charge proved against the first, second and third respondents in each proceeding. The unchallenged evidence of the fourth respondents in each proceeding is that they were not responsible for the respective headlines, and that being so, the charge fails as against them. There is no evidence before me to suggest that the persons who created the headlines were not persons for whom one or more of the remaining respective respondents bore responsibility.

338. The matter will be relisted for the making of submissions on the question of penalty.